Prosecutorial Discretion

11/11/2016

I've received many calls and emails this week. Immigrants and their supporters are anxious about what Donald Trump's presidency will mean for them. Here are a few thoughts (but no answers):

DACA

Individuals with Deferred Action for Childhood Arrivals (DACA) are worried that their lives are going to be torn apart. DACA has been an inspiration to me as I have seen young people use their education and talents to work in their chosen professions and to improve their lives and communities. It will be a great loss for these U.S. educated individuals with strong ties here to once again be unable to work or drive legally.

President-Elect Trump has said that he intends to immediately cancel "unconstitutional executive action[s]" including DACA. It is unknown whether he will allow those with DACA to continue working until their authorizations expire or will immediately cancel all employment authorizations and deferred action.

The loss of DACA will hurt us all.

Removals

Individuals who are in the U.S. unlawfully are subject to removal (deportation). The Obama administration has already removed or deported more people than any other president. They have concentrated efforts on those with significant criminal convictions. Mr. Trump says he will "begin removing the more than 2 million criminal illegal immigrants from the country." The Obama administration already has the Immigration Courts backlogged for years with removal cases. The Trump administration will need to pour considerable money into the Immigration Courts to move faster than his predecessor.

I am concerned that he will expand the definition of "criminal alien" to include minor traffic offenses, including driving without a license. This will lead to racial profiling and fear of police in our communities.

Anti-Immigrant Advisors

Kris Kobach, Kansas Secretary of State and author of numerous egregious and unconstitutional immigration laws (think racial profiling in Arizona), has announced that he will be on Mr. Trump's transition team to advise him on immigration issues. It is deeply troubling (but not surprising) that Mr. Kobach will be influencing immigration policy in the Trump administration.

Washington D.C. - Today, the Supreme Court heard oral arguments in United States v. Texas. The highest court will now decide whether the President’s deferred action initiatives announced in November 2014, known as expanded DACA and DAPA, move forward.

“The lawyers arguing for the deferred action initiatives made a convincing case that the law and the Constitution are on our side. As expected, the Justices asked probing questions to both sides, demonstrating they understand the high stakes involved this case,” said Beth Werlin, Executive Director of the American Immigration Council.

According to the Council’s Legal Director Melissa Crow, “Much of the argument focused on whether Texas really has standing – a sufficient stake in the outcome of the case to file a lawsuit. The arguments highlighted the fact that this is a political dispute about enforcement policies, not the type of legal dispute that should be before the Supreme Court. Texas’ arguments on standing are unconvincing. As Justice Breyer noted, a finding by the Court that Texas has standing could flood the courts with lawsuits based on all kinds of political disagreements between States and the federal government.”

President Obama’s deferred action initiatives advance common-sense enforcement priorities. To qualify for deferred action, individuals must have continuously resided in the United States since January 1, 2010, register with the government and pass a criminal background check. Instead of tearing apart families through broad enforcement actions, the President is letting law enforcement officials focus their attention on those who pose the greatest threats to public safety.

The American Immigration Council and 325 other immigrants’ rights, civil rights, labor and service-provider organizations filed an amicus brief in the case outlining how families and communities would benefit from the initiatives.

05/26/2015

Today the 5th Circuit refused to lift the injunction on Deferred Action for Parents (DAPA) and expanded Deferred Action for Children (DACA+). In a split decision (2-1), the court ruled that the government has not made a case for going forward while the legality of the program is under review in the courts. The Administration may appeal to a full panel of the 5th Circuit or to the U.S. Supreme Court for a stay of the injunction.

The court ruled that the State of Texas had standing to sue because it would be required to issue driver's licenses to those granted deferred action.

This decision dealt only with whether to lift the injunction and did not address the legality of DAPA/DACA+. The 5th Circuit will consider the question of legality in July.

an education, literacy or career training program (including vocational training) that has a purpose of improving literacy, mathematics or English or is designed to lead to placement in postsecondary education, job training or employment

an education program assisting students either in obtaining a high school diploma or a GED

GED, English as Second Language (ESL) or vocational training classes funded by the government, colleges or a non-profit organization (such as a church) qualify.

Programs funded by other sources may qualify but are required to show that the program has demonstrated effectiveness. Ask the program before you enroll if it meets the requirements for for DACA.

Beware of internet diplomas. Most of these will not qualify you for DACA.

The other requirements for DACA are that you:

Were born after June 16, 1981;

Came to the U.S. before your 16th birthday;

Have continuously resided in the U.S. since June 15, 2007;

Were physically present in the U.S. on June 15, 2012, and at the time of your DACA application;

Have no lawful status on June 15, 2012;

Have not been convicted of a felony, significant misdemeanor, three or more misdemeanors, and do not pose a threat to national security or public safety.

11/21/2014

Last night, President Obama announced that he is acting administratively to improve the immigration system. One of the changes will expand the number of people who can request deferred action.

Q - What is deferred action?

A - Permission to stay in the U.S. and obtain authorization to work legally. The grants of deferred action will be made for 3 years (an increase from the 2 years previously offered for DACA).

Q - Who can apply?

A - Deferred Action for Childhood Arrivals (DACA) will be revised to allow immigrants who came to the US prior to their 16th birthday and before 1/1/2010, to request DACA regardless of their age at the time that President Obama made the announcement. (Currently, those who were born before 6/15/1981 can not apply). Deferred Action for Parents (DAP) will allow immigrants who have U.S. citizen or legal permanent resident children to apply for deferred action.

Q - When can I apply?

A- Those newly eligible to apply for DACA will be able to apply in 90 days (Feb. 2015). Those eligible for DAP will be able to apply in 180 days (June 2015).

I will continue to monitor the developments on deferred action and let you know what I discover.

03/17/2014

Baylor Law School will offer free assistance to immigrants who qualify for Deferred Action for Childhood Arrivals (DACA).

When? April 1, 2014 and April 3, 2014 from 6:00 to 9:00 p.m.

What are some of DACA’s benefits?

Get a social security number

Be authorized for legal employment

Who qualifies? Immigrants who:

Were born on or after June 15, 1982;

Came to the U.S. before the age of 16;

Have continuously resided in the U.S. from June 15, 2007 to the present;

Are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces;

And have not been convicted of a felony, significant misdemeanor, or more than three misdemeanors.

When you contact us, our law students will help you determine if you qualify for DACA and our services. While our services are completely free, U.S. Citizenship and Immigration Services charges an application fee of $465. Translators will be available. Baylor Law School will not provide additional services after the scheduled clinics.

03/15/2013

With immigration courts still backlogged more than a year after the Obama administration launched a controversial policy to close certain deportation cases, the nation's top immigration judge has encouraged colleagues to take matters into their own hands.

In a memo issued this month, Chief Immigration Judge Brian O'Leary wrote that judges are “encouraged to consider” a landmark ruling from last year that allows them to close deportation cases over the objection of prosecutors.

The decision was hailed by immigration lawyers, who said it will help relieve heavy dockets of languishing cases. San Antonio had the second-largest backlog in the state with 10,000 cases pending last year.

But a former immigration judge criticized the guidelines as sending the message that immigration laws won't be enforced, adding that administrative closure, which puts deportation proceedings on the shelf, leaves immigrants in legal limbo.

The recommendation to consider closing cases despite the government's objection came in a memo in which O'Leary lamented the backlog in the nation's immigration courts.

Morton's prosecutorial discretion guidelines, which encouraged ICE's attorneys to focus on immigrants who committed serious crimes and shelve the cases of those who meet certain guidelines, such as serving in the military or having U.S. citizen families, haven't made much of an impact, Curtright said.

Of the more than 16,000 cases closed since the so-called Morton Memo was issued in 2011, only about 200 were in San Antonio courts, according to TRAC.

Administratively closing a case means a judge sets it aside and takes it off the docket, but it can be reopened at any time.

To deal with the backlog, O'Leary wrote, judges can administratively close cases even when ICE prosecutors object. In the past, he wrote, judges couldn't close a case unless the government recommended it. An appeals case decided last year changed that.

In the Matter of Bavakan Avetisyan, the Board of Immigration Appeals ruled that immigration judges can administratively close cases even if one side objects.

“Requests for administrative closure ... should be granted in appropriate circumstances. Since our resources are limited, those resources must be applied to situations where there is an actual dispute between the parties,” O'Leary wrote. “However, administrative closure cannot be used simply to remove a case from the court docket.”

01/16/2013

Tiempo: Tell us about your experience with clients and immigration
issues.

Nelson: My first encounter
with immigration law was when my husband and I adopted our daughter from Russia.
Although we are both lawyers, we needed help to navigate the complex
immigration process. After our experience with the adoption, I started
receiving calls from other attorneys and individuals who knew of my experience.
I began practicing immigration law beyond pro bono cases in 2003, and it is now
where I spend the majority of my time.

I like immigration law because it allows me to
help people keep their families together. Many lawyers help pick up the pieces
when families fall apart, but I work to help families who want to be together
stay together. I am often frustrated by the current state of the law when I see
deserving people whose families are being torn apart without remedy or
recourse.

Tiempo: What is the
difference between the Texas DREAM Act and the one that is being discussed in Washington?

Nelson: The
Texas DREAM Act was signed into law by Governor Rick Perry in 2001 and provides that
all students, regardless of immigration status, may qualify for in-state
tuition at Texas colleges or universities provided they have lived in Texas the
three years leading up to high school graduation and resided in Texas the year
prior to their enrollment in higher education.

The Texas Dream Act has succeeded by providing
access to higher education for students who otherwise are unable to afford the
increasing cost of attending college and by providing needed money to Texas colleges and
universities. In the present legislature a bill has been filed that would repeal the
Texas DREAM Act. Governor Perry hinted that he would veto such an attempt to
repeal in-state tuition for undocumented students, but I hope that this bill
will never reach his desk.

The federal DREAM Act (The Development,
Relief, and Education for Alien Minors Act) was first introduced in
Congress in 2001 with bipartisan support but never became the law. If
enacted, it would provide a path to permanent residence for undocumented
immigrants who were brought to the U.S.
as children, who graduated from high school or obtained a G.E.D. in the U.S.
and who have good moral character if they complete two (2) years of college or
in the military.

Tiempo: What can be expected with the
political climate on immigration now that President Obama has been re-elected?

Nelson: In
recent years, attempts to fix our nation’s broken immigration laws have been hijacked
by the anti-immigrant, anti-“amnesty” movement. I am hopeful there will be a
change in the dynamics and an opportunity for Congress to make changes in our
laws that will place the 12 million undocumented immigrants who are in the U.S.
on a path to earning legal permanent residence.

Tiempo: Could you explain in a few words the Deferred
Action decision from last year?

Nelson: In June of 2012, the Obama administration
announced that it would accept requests for Deferred Action for Childhood
Arrivals (DACA). This initiative is designed to temporarily suspend the
deportation of young people residing unlawfully in the U.S who were brought to the
United States as children, are
attending or have graduated from U.S. schools and who have good
moral character. Young people who are approved for DACA receive an Employment
Authorization for 2 years that can be renewed as long as the DACA program continues,
but it does not provide a path to permanent residence for these young people.

Tiempo: What
cases have you dealt with recently regarding Deferred Action?

Nelson: I
represent a number of clients with DACA cases. In addition, I provide direction
to the Baylor Law School Immigration Clinic. We assisted 120 young people to
complete applications in the Fall, and plan to have another DACA Clinic this
Spring. Most DACA applicants receive approvals in about 3 months.

Tiempo:What is the current status of applications for
immigrants who have been victims of a crime in McLennan County?

Nelson: In
2000, Congress created the U-Visa for victims of certain crimes in order to
encourage undocumented victims to report crimes and cooperate with law
enforcement agencies.

In order to apply for the U-Visa, a crime victim
must first obtain a certification from a law enforcement agency, prosecutor or
judge stating that they were the victim of a qualifying crime and that they
cooperated with law enforcement.

There has been a problem in McLennan County in recent years.
The Waco Police Department does not sign the required certifications but refers
all requests to the District Attorney’s office.

District Attorney Abel Reyna has declined to sign
all of the requests for certification that I submitted on behalf of crime
victims, including one for a minor sexual abuse victim whose abuser is serving
35 years in prison because she and her mother came forward.

Fortunately, judges can also sign the
certifications. Judge Ralph Strother recently signed the certification so that
this brave young girl can apply for a U-Visa.

However, our judges cannot shoulder the entire
burden. There is a need for the DA’s office and police departments to also sign
the certifications, and I hope that they will reconsider their policies.

Tiempo: What can the community do to support the DREAM
Act Alliance locally?

Nelson: The Waco DREAM Act Alliance
is a grassroots advocacy organization dedicated to promoting the DREAM act and
immigrant rights. They meet regularly and support local DREAMers
and their families. You can find them on Facebook at http://www.facebook.com/groups/WacoDREAM/ or
on-line at www.wacodream.org.

You can also express your support for the DREAM
Act and comprehensive immigration reform by contacting your congressional
representatives and Senators. You can find your representative’s contact
information at http://www.house.gov/representatives/find/. Your
Senators’ contact information can be
found at http://www.senate.gov/.

The Waco DREAM Act Alliance
and national organization United We Dream are working to stop the deportations
of family members of DACA eligible young people and U.S. Citizens. If you know
of someone in deportation proceedings who fits into this category, they should
complete a Case Questionnaire at http://unitedwedream.org/end/ and contact the Waco DREAM
Act Alliance.

Tiempo: What is the new rule that effects the way that spouses of U.S. Citizens obtain their permanent residence?

Nelson: The Obama Administration is attempting to lift the burden of our broken immigration laws by making rules that change the process but not the law.

Under current law, many immigrants who enter the country without inspection cannot apply for permanent residence (a “green card”) in the U.S., and instead must finish the immigration process abroad. Unfortunately, for most people, just leaving the country—even to pick up a visa sponsored by a family member—automatically makes the intending immigrant subject to a penalty for their “unlawful presence,” potentially separating them from their family for up to ten years.

For some, but not all, the penalty can be waived. To be successful, applicants must show that denying the case would be an extreme hardship to their qualifying relative(s); the impact on the immigrant doesn’t count. Hardship factors can include family separation, economic hardship, medical issues, country conditions abroad, and any other difficulty or harm faced by the qualifying relative(s), if the waiver isn’t granted.

Under the old rule (which will continue to be the process for spouses of permanent residents), the applicant can not apply for the waiver until after they leave the U.S. and have their consular interview. They are required to wait in their home country while the waiver application is decided.

Immigrants can be stranded outside the U.S. for months or even years while waiting for a decision on whether they can return to their family. Many families endure the emotional strain, financial hardship and dangerous conditions of this waiver process. Others simply are unwilling to take the risk.

The new rule allows spouses of U.S. Citizens to apply for a provisional waiver of unlawful presence before they leave the U.S. for their consular interview. If they receive the provisional waiver, they will leave the U.S. to apply for their immigrant visa knowing in advance that their case will probably be approved, and they could be back with their families—as a legal resident—in a matter of weeks.

The new rule takes effect on March 4, 2013.

Susan I. Nelson is a Waco attorney and practices with her husband, Alan Nelson, in The Nelson Law Firm, P.C. She represents individuals and businesses in immigration cases and writes the Texas Immigration Lawyer Blog (www.centeximmigration.com) in which she provides news and opinions on immigration law and policy. Susan came to Waco in 1976 to attend Baylor University, and has been here since that time. She has practiced law in Waco since she graduated from Baylor Law School in 1990.